Judge's ban sets precedent

A Winnipeg judge has made legal history by banning a newspaper reporter from her courtroom.

At this point you're probably saying: "Boy, that reporter must have done something terrible. What did he do? Threaten a witness? Smuggle a video camera into court? Yell at the judge during proceedings?"

The answer is none of the above.

Queen's Bench Justice Marianne Rivoalen, at the request of Manitoba Child and Family Services, banned Mike McIntyre because in a story he identified a psychologist who testified in the high-profile child welfare case involving parents who passed along their white supremacist views to their children.

It would not be far off the mark to say Justice Rivoalen took a sledge hammer to a fly.

Before getting into the details, let's take a step back.

The reality of the news business in Winnipeg these days means that only a tiny number of media outlets assign a reporter full-time to the very important public interest task of scrutinizing what happens in the court system.

The Winnipeg Free Press does so and our reporter is Mike McIntyre.

No reporter in Manitoba is better informed or better qualified to report on courts, or as dedicated as Mike, whose life's passion is reporting on courts -- in the newspaper, on the web, in books, on radio and any other way he can find of communicating to the public.

So Justice Rivoalen's ruling is particularly cruel because it suggests the most dedicated and informed court reporter in Manitoba would deliberately do something to undermine a case, and can't be trusted to properly report on a case -- which is absolutely false.

Justice Rivoalen singled out Mike. She did not ban other Free Press reporters, or, for that matter, reporters from CJOB, which also identified the psychologist, or from Global TV, which identified the parents at one point.

It happens in court sometimes that judges ban all media representatives, or publication of proceedings, but we could find no other examples of a single reporter being tossed out.

Justice Rivoalen's decision puts her in the role of deciding who can cover her court and who cannot. It's an alarming precedent when a judge exercises this power in a democratic society.

Judges, of course, have authority to keep order in their courts. Mike, however, is not accused of disrupting Justice Rivoalen's court and there has been no suggestion that he would ever do so. There has been no evidence that anything he has done has or could disrupt the courtroom, or affect the fairness of the trial.

At issue is the Child and Family Service Act, and its provisions on what can be reported about child welfare cases, and even who can attend court.

The act governs how a state agency can take children away from their parents -- a role that deserves public scrutiny. However, the act limits that scrutiny. Members of the public cannot attend court for child welfare cases -- only members of the media can do so on the public's behalf. And the CFS Act says no names of any parties or witnesses in a case can be cited.

You could argue that the CFS Act is overly broad, and, in fact, expert witnesses should be named in child welfare cases because there is certainly a big public interest in knowing who the experts are and what qualifications they have to give opinions on whether the state should take custody of a child.

You could make these arguments, but the Free Press never got a chance to do so.

The director of Manitoba CFS made an application, without notice to the Free Press, on June 25 to ban the newspaper and Mike from the court case.

The judge ruled that only Mike should be banned, without hearing any evidence about whether the CFS Act was breached. The Free Press has continued to cover the case using another reporter. As well, we immediately removed the psychologist's name from our electronic records and issued letters of apology to all involved, as the judge ordered.

From the start of the case, CFS has sought to limit or eliminate any media coverage of it. CFS filed a motion to ban all media outlets, which the judge rejected. CFS also tried to get Global banned after the names of the parents appeared on a nationally televised report. The judge rejected this request.

The CFS Act allows a judge to ban media representatives, but only if the court is satisfied that their presence will be manifestly harmful to any person involved in the proceedings. CFS did not present evidence that naming the psychologist would cause manifest harm.

Prior to the trial, the CFS did argue that harm had been caused by earlier coverage by Mike, which they argued had too many details. The Free Press implemented procedures to make sure identifying details would not be published by us.

While banning media coverage can be done to prevent harm to children, it would also remove public scrutiny of CFS actions in this highly controversial case, and the agency's actions have certainly come under the microscope.

The Free Press has sought to balance the public service function of watching over what the CFS is doing with the privacy rights of the children. We learn from our mistakes and use the knowledge to improve our coverage.

We act this way this despite the fact that the parents themselves have posted details of their lives and those of their children online.

Of course, the web is a very hard place to regulate.

It's a lot easier to single out a reporter who is in your courtroom for punishment.

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